Cho High Court Decision 2010Du0970 ( October 20, 2010)

A person who sells drugs to a member is not the Plaintiff Company.

Since it is reasonable to deem that a third party, not the Plaintiff, a pharmaceutical wholesale company, sold drugs to its member on its own account, regardless of the Plaintiff company, the imposition of corporate tax and value-added tax on the premise that the actual subject of attribution

2010Guhap43327 Disposition of revocation of imposition of corporate tax, etc.

Smerdicar Co., Ltd.

O Head of tax office

May 12, 2011

June 9, 2011

1. The Defendant’s respective taxation dispositions indicated in the attached Form. List against the Plaintiff shall be revoked.

2. The litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff, as a drug wholesale corporation, delivers approximately 1,200 customers, including hospitals and pharmacies.

section 1.2.

B. The director of the Seoul Regional Tax Office determined that the Plaintiff sold drugs equivalent to KRW 203,860,000 for the supply price of the instant member during the period from 1st to 2006 the value-added tax was omitted and notified the Defendant of the disposition imposing corporate tax and value-added tax (hereinafter “instant disposition”) on January 1, 201 and the 4th of the same month on the ground that the Defendant imposed corporate tax and value-added tax on KRW 203,860,00 for the instant member during the period from 1st to 206.

C. On March 8, 2010, the Plaintiff appealed to the instant disposition and filed an appeal with the Tax Tribunal for adjudication.

August 20, 2010 was dismissed.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 8 (including each number in the case of additional evidence) and the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiff's assertion

The KimA, who was an intermediary belonging to the Plaintiff Company, is the employee of the UB, and was demanded by the instant member to supply non-data items, he purchased medicines in a place other than the Plaintiff Company and sold them to the instant member. Therefore, since the instant transaction was unrelated to the Plaintiff Company, the instant disposition based on the premise that the said transaction amount was the sales of the Plaintiff Company is unlawful.

(2) The defendant's assertion

원고 회사는, 유BB과 김AA가 김AA의 개인 계좌인 우리은행 계좌(우리은행 147-XXXXXX-02-001, 이하 '이 사건 계좌'라고 한다)를 통하여 원고 회사와 관계 없이 독자적으로 무자료 거래를 하였다고 주장하나, 그 계좌는 거래내역으로 볼 때 원고 회사의 차명통장으로 보이는 점, 김AA는 무자료 거래의 상대방 업체 및 매입처, 매출처 등을 밝히지 못하고 있는 점, 원고 회사와 이 사건 의원 사이의 전체 거래 중 무자료 거래가 95% 이상을 차지하고 있는바, 이를 원고 회사가 몰랐다는 것은 경험칙에 부합 하지 않는 점, 김AA는 원고로부터 일정한 근로소득을 지급받은 점 등에 비추어 보면 원고 회사의 주장은 이유 없다.

(b) Fact of recognition;

(1) On February 2003, KimA entered the Plaintiff Company upon the recommendation and recommendation of the UBB, a university leader of KimA, around February 2003.

(2) The Plaintiff Company employed 10 sales employees, and adopted the business method for each sales employee to manage the transaction partners by dividing them. The instant member was in charge of KimA. KimA reported that the Plaintiff Company received KRW 13,800,000 from the Plaintiff Company as earned income in 2004, KRW 13,800,000 in 205, and KRW 12,726,800 in 206.

(3) The Plaintiff’s procedures for handling drug sales are as follows.

(1) If a sales member in charge visits a hospital or any other business partner to take necessary medicine, he/she shall prepare a written statement of transactions to be entered in the order form of the company, and submit it to the female employee in charge of accounting, and the female employee in charge of accounting shall enter the said order into the computerized statement of transactions and then deliver three copies of the written statement of transactions to the sales member. (2) The sales member shall, upon receiving the medicine from the warehouse manager, submit one of them to the warehouse manager, deliver one of them, and deliver one of them to the customer while supplying the delivered medicine, and the other one shall be kept by the sales member.

(4) Around February 2009, the Seoul Regional Tax Office: (a) obtained from thisCC operating the instant member a written confirmation from the Plaintiff that the omitted amount in filing a return (the cost of supply) was confirmed as follows, when purchasing medical supplies, etc. from the Plaintiff; (b) the instant member purchased the pertinent member’s medical supplies, etc. without a tax invoice.

(The following table omitted)

(5) On the other hand, on May 27, 2009 and June 4, 2009, KimA had been employed as the Plaintiff’s employee twice from May 27, 2009 to February 2, 2006, he prepared a confirmation document recognizing that he had purchased and supplied medicines through a person who was requested for non-data transaction by the instant member, regardless of the Plaintiff, through his own default or pharmaceutical-related persons. In addition, in the case of non-data transaction, the transaction statement and deposit statement prepared to be received and made to be received differently from the general procedures for dealing with pharmaceutical affairs of the Plaintiff company are limited to the transaction statement and deposit statement prepared to be received, and KimA maintained only the transaction statement, deposit statement, and non-data transaction (Evidence No. 7).

(6) In trading drugs, KimA and UB prepared a joint and several surety with the Plaintiff Company to guarantee that the Plaintiff Company will be jointly and severally liable for the performance of the obligation with respect to all obligations incurred at present or in the future, as well as those incurred by the transaction of drugs. On October 7, 2010, the Plaintiff Company’s representative director of the Plaintiff Company drafted and notarized an agreement to jointly and severally compensate for the corporate tax, value-added tax, etc. estimated due to the instant key transaction, and the UB paid part of the estimated tax amount instead of the Plaintiff.

(7) KimA and UB have testified in the instant court to the following purport:

㈎ 김AA가 원고 회사에 입사한 후 김AA는 유BB의 지시에 따라 의약품 판매와 관련된 거래를 하였는데, 김AA가 관리하던 병원에 의약품을 공급하였을 경우 병원에서 받은 판매대금은 사업용 계좌였던 이 사건 계좌에 입금하였고, 매월 원고와의 약정에 따라 산정한 금액을 원고의 사장인 이DD 명의의 계좌에 입금하였다.

㈏ 그런데 김AA가 이 사건 의원에 무자료 의약품을 공급한 경우에는 김AA가 현금 또는 수표로 판매대금을 수령하여 유BB에게 전달하였고, 유BB은 무자료 의약품 공급 및 자금 관리를 하였다. 김AA는 유BB으로부터 월급과 필요한 생활자금을 지원받았다.

㈐ 김AA는 원고로부터 정상적으로 의약품을 공급받아 다른 곳에 판매할 경우 매출액의 20% 정도를 수수료로 지급받았을 뿐이고, 원고로부터 일정한 월급을 지급받지는 않았으며, 원고 회사의 김AA에 대한 근로소득 신고는 실제와 부합하는 것이 아니다.

(8) From June 2004 to June 2006, KimA sold the Plaintiff’s product normally, the total sales amount of KRW 708,677,463, and the amount deposited by KimA through the instant account is KRW 390,571,94 in total.

[Grounds for Recognition] Each of the evidence set forth above, Gap's evidence set forth in Gap's 3 through 14, 16, 17, 19, 20, 22, 23, and 24, Eul's evidence set forth in Eul's 9, 10, and 11 (including each number in case of a natural disaster), witness KimA, and witnessB's testimony

C. Determination

(1) Article 14(2) of the Framework Act on National Taxes provides that the provisions on the calculation of tax base under the tax-related Acts shall apply according to the substance regardless of the name or form of income, profit, property, act or transaction. Thus, the issues of the instant case ultimately depends on the Plaintiff Company.

(2) We examine the issue of this case. The issue of this case was conducted between KimA, a business employee of the plaintiff company, and the member of the plaintiff company. The details of this case's transaction and deposit table were also used in the form of the plaintiff company's name. The operator of this case's member also prepared a confirmation document that the issue of this case's transaction was conducted between the plaintiff company and the plaintiff company. However, in light of the transaction process of the plaintiff company's drug sales, it seems that it is possible to supply other drugs than the plaintiff company's company to the members of the plaintiff company. ② In light of the financial transaction details between KimA and LeeD, and other personal transaction details of KimA, the account of this case's account is not seen as a borrowed account of the plaintiff company. ③ Since intermediate merchants were jointly and severally sold to Kim Dok's Kim, etc., and the sales proceeds of this case's Dok and Kim Dok's sale proceeds can not be seen as the issue of this case's sales fees, and the specific amount of this case's sales fees can not be seen as the other issues of this case's sales.

3. Conclusion

Therefore, the disposition of this case based on the premise that the actual owner of the instant issues transaction is the Plaintiff Company is illegal. Therefore, the Plaintiff’s claim seeking its revocation is justified and it is so decided as per Disposition by the assent of all participating Justices.